Let's not over-complicate euthanasia debate

By Paul Komesaroff and Stephen Charles

November 20, 2014 — 10.53am

The long-running debate about whether voluntary euthanasia or assisted suicide should be permitted by law continues to create division in the Australian community and arouse passionate views on both sides.

In the latest rounds of the debate, a Senate Committee has called for a conscience vote when the matter next gets to Parliament, the Australian Medical Board has suspended the medical registration of euthanasia activist Dr Philip Nitzsche, and The Age has initiated a campaign of its own to influence public opinion. Sadly, despite the sound and fury, little progress is made: on the one side, the proponents of active voluntary euthanasia pursue the demand for enactment of "right to die" legislation, while on the other, their opponents continue to call for preservation of traditional values and practices.

The often strident and acrimonious tone of the debate obscures the facts that there is much agreement between the two sides and that there is a genuine problem in the current law that needs to be addressed. Recognition of this common ground might allow the social deadlock to be broken and for genuine progress to be made in the continuing controversy.

The agreement – which is demonstrated by all polls conducted on this subject – is that people suffering from terminal illnesses are entitled to adequate treatment of their symptoms and should be able to make key decisions about when and how they die. The problem with the law is that doctors who follow current best practice, by providing whatever care is needed to alleviate pain and suffering, cannot be confident that they will be protected from criminal prosecution for murder, manslaughter or aiding and abetting suicide arising from their active involvement in the death of their patient.

Of course, important areas of disagreement remain. Many members of the community find it hard to abide the prospect of institutionalised processes to promote killing in any setting, based either on their memories of the tragic history of the 20th century or on religious or philosophical convictions about the nature of death and ethical responsibility.

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While the experiences from overseas jurisdictions – the US and Europe – are undoubtedly reassuring, it has to be accepted that these concerns are by no means frivolous. The possibility that the option of euthanasia might be seen by some as a device for addressing critical shortages in health budgets cannot be dismissed. Many doctors remain understandably nervous about the implications for their profession of what they see as a radical reversal of some of its most enduring precepts. The cases of people with chronic but not terminal illnesses remain difficult, and those of people without physical illness at all more difficult still.

We believe that a shift in the debate from the high-level – and inherently insoluble – abstractions about a "right to die" and the "sanctity of life" to a focus on practical issues that need urgent attention might allow the social deadlock to be broken and progress to be made at last in bringing about meaningful reform. To achieve this only modest changes in the existing law are needed.

We propose that legislation be enacted to amend the relevant Commonwealth and State Crimes Acts to provide a defence to a charge of homicide or manslaughter if a doctor has prescribed or administered a drug that hastened or caused the death of a patient with a terminal disease if the doctor: (a) reasonably believed that it was necessary to prescribe or administer the drug to relieve the pain or suffering undergone by the patient; or (b) prescribed or administered the drug with the intention of relieving such pain or suffering.

A simple legislative change to this effect would ensure that people facing serious illness could be confident that their needs will always be able to be met, and that doctors following accepted best practice in providing for the needs of their patients will be able to do so free from the threat of a criminal conviction. The responsibility of doctors to be able to account for their actions will not be diminished and protection for elderly and vulnerable members of the community will remain intact. The locus of end-of-life decision-making will be returned to where it should be: in the dialogues between patients, families and their medical carers.

This minimalist solution should be widely acceptable to the community, including to those who remain disquieted by attempts to purify death of its untidiness, uncertainty and risk. The difficult cases in which patients with severe chronic illnesses but without terminal illnesses request assistance with dying will remain unsolved, but the public debate will be able to move ahead to address the complex issues associated with them.

It is time to move on from never-ending, unproductive, circular discussions about end-of-life decision-making to a more practical approach that will solve pressing social problems and refresh the public debates.

Professor Paul Komesaroff is Director of the Centre for Ethics in Medicine and Society and author of Riding a Crocodile: A Physician's Tale, and Stephen Charles QC is a barrister and former judge of the Victorian Court of Appeal.